Authors: Howard M. Wexler and Samuel Sverdlov

Seyfarth Synopsis: The NLRB recently published a Notice of Proposed Rule Making regarding three proposed amendments to its current rules and regulations for union elections.  These amendments consist of: (1) a change from the current election blocking charge policy to a vote-and-impound procedure; (2) a reversion to the rule of Dana Corp. with respect to voluntary recognition agreements; and (3) a modification of the evidentiary requirements for § 9(a) recognition in the construction industry.  Comments on the proposed amendments are due on October 11, 2019.

On August 12, 2019 the National Labor Relations Board (“NLRB” or “Board”) published the first of potentially several Notices of Proposed Rule Making (“NPRM”) regarding amendments to the Board’s union representation procedures.  Specifically, in the NPRM, the Board proposes the codification of rules impacting the Board’s current block charge policy, procedure for challenging representation via a voluntary recognition agreement, and procedure for gaining Section 9(a) recognition in the construction industry.  As per the NLRB’s press release dated August 9, 2019, the proposed amendments, which received majority support from Board Chairman John F. Ring, and Board members Marvin E. Kaplan and William J. Emanuel, are meant to “better protect employees’ statutory right of free choice on questions concerning representation.”  We describe each proposed amendment in greater detail below.

Blocking Charge

Under the Board’s current practice, a party (which the Board states “is almost invariably a union”) is permitted to block a representation election simply by filing unfair labor practice (“ULP”) charges with allegations of impropriety in the election process.  The Board seeks to eliminate this practice of blocking elections for pending ULP charges because it unnecessary delays petitioned-for elections.  Indeed, the Board expressed myriad concerns regarding the current policy, including that “incumbent unions seeking to avoid a challenge to their representative status” engage in “abuse and manipulation” to delay elections, and that the policy is currently inconsistently applied by the NLRB’s regional directors.

Instead, the Board proposes that it adopt a vote-and-impound policy, whereby regional directors would continue processing representation elections (despite pending ULPs), however, if the ULPS have not been resolved prior to the election, then the ballots would remain impounded until the ULP can be resolved.  The Board contends that this process would preserve employee free choice because balloting can proceed before a probable cause finding has been issued, and if a ULP is without merit, the ballot counting can occur immediately, rather than after further delay as the election is unblocked, renegotiated, and redirected.

Voluntary Recognition Procedures

The Board also proposes to modify the process by which employees can file a petition for an election following an employer’s voluntary recognition of a union.  By way of background, in 2007, the Board issued the Dana Corp. decision, which held that once employees receive notice that they are represented by a union pursuant to a lawful voluntary recognition agreement, they have 45 days to challenge the representation through a secret ballot election.  The Obama-era Board abandoned this rule in 2011 when it issued the Lamons Gasket Co. decision holding that employees must wait a “reasonable period” of time to pass before an election can be challenged.  Now, the Board seeks to revert back to the practice set forth in Dana Corp.  In support of the Board’s position that this proposed amendment would increase employee free choice, the Board avers that elections are a superior method for employees to express their will than voluntary recognition agreements, which are supported by authorization cards.

Construction-Industry Agreements

Section 8(f) of the National Labor Relations Act (“NLRA”) provides a procedure unique to the construction industry, by which employers could establish a collective bargaining relationship with a union without majority support from the employees.  While this provision allows collective bargaining within the atypical parameters of the construction industry, a collective bargaining relationship under Section 8(f) does not enjoy all of the benefits of a traditional collective bargaining relationship under Section 9(a) of the NLRA, including a contract bar period during which no representation elections can be held for up to three years before the collective bargaining agreement expires.  In the Board’s 2001 ruling in Stanton Fuel, the Board held that a construction industry union can convert an 8(f) relationship to a 9(a) relationship simply by relying on contract language alone without a contemporaneous showing of “positive evidence” of majority support amongst employee.  In the NPRM, the Board seeks to overturn Stanton Fuel, and require a contemporaneous showing of positive evidence of majority support to convert an 8(f) relationship to a 9(a) relationship.

Public Comments

Public comments on the NPRM are due on October 11, 2019, and they must be submitted either electronically or by mail to Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001.  Once the public comment period closes, the NLRB will review the comments and decide whether to issue a new or modified proposal, withdraw the proposal, or proceed to a final rule.

Additional Rule-Making On The Horizon

The NPRM is consistent with the regulatory agenda announced by the NLRB on May 22, 2019.  The other topics considered by the NLRB are the classification or students performing work at private colleges and universities, and standards for access to an employer’s private property.

If you have any questions regarding the NPRM and how it might impact your business or industry, please contact your local Seyfarth Shaw attorney.

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Howard is an associate in the Labor and Employment group in Seyfarth Shaw’s New York office. His practice includes the representation of management in employment litigation matters before state and federal courts, at trial and appellate levels, as well as federal and state agencies, including the National Labor Relations Board, Equal Employment Opportunity Commission, Department of Labor, New York State Division of Human Rights, New Jersey Division on Civil Rights and the New York State Public Employment Relations Board.  In this role, Mr. Wexler has extensive experience defending both single and multi-plaintiff discrimination/harassment cases, class and/or collective actions, as well as lawsuits initiated by the EEOC.  He has represented employers in class and collective actions and multi-plaintiff claims involving discrimination/harassment on the basis of age, race, gender, national origin, and other protected classifications. His wage-and-hour experience includes the defense of major class action claims involving meal breaks, rest breaks, misclassification, and work-off-the-clock allegations.